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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
“Can I see your boarding pass and photo I.D.?” It’s a question asked millions of times each day in U.S. airports — never more often than during the holidays. But for John Gilmore, one of the founders of Sun Microsystems, it’s a question that sparked a legal odyssey lasting more than four years. The next stop on Gilmore’s travels is the Supreme Court, which will decide in its private conference on Jan. 5 whether to grant review in Gilmore v. Gonzales, which challenges the federal government’s refusal to disclose the secret directive that allegedly requires passengers to either show identification or undergo additional security screening. On July 4, 2002, John Gilmore went to Oakland International Airport to board a Southwest Airlines flight to Baltimore-Washington International Airport. When Gilmore refused to comply with requests by Southwest employees to show identification, he was told that he would not be permitted to board the plane. After being told that he could instead opt to undergo additional screening at the boarding gate, Gilmore proceeded to the gate but was ultimately not allowed to board after he again refused to show identification. That same day, Gilmore made a second attempt to travel to the Washington area, this time going to San Francisco International Airport to buy a ticket on a United Airlines flight. While at the ticket counter, Gilmore saw a sign — described as a “Notice from the Federal Aviation Administration” — indicating that “ PASSENGERS MUST PRESENT IDENTIFICATION UPON INITIAL CHECK-IN.” Although airline personnel again told Gilmore that he could not fly without presenting identification, he was later informed that he could also choose to undergo additional, and more invasive, screening. Airline personnel also refused Gilmore’s requests to see the document that imposed the identification requirement. Gilmore didn’t give in, and he then left the airport. Two weeks later, Gilmore filed a suit in federal district court challenging the government’s refusal to provide him with a copy of the directive requiring passengers to present identification. Deeming the suit a challenge to Transportation Security Administration and FAA regulations, the district court held that it lacked jurisdiction. On appeal, the U.S. Court of Appeals for the 9th Circuit — which had ordered the government to file materials pertaining to the identification requirement under seal — agreed that it had no jurisdiction over some of Gilmore’s claims. It further held that the directive imposing the identification requirement constituted “sensitive security information” and thus did not need to be disclosed to the general public, including Gilmore. Finally, it rejected Gilmore’s claim that the failure to provide him with a copy of the directive itself violated due process, explaining that Gilmore had “actual notice” of the directive’s requirements. Gilmore’s petition for certiorari again challenges the government’s refusal to provide the directive. According to the petition, it is not sufficient for the government “simply to assure the public as to what the law requires.” Instead, the petition asserts, “There . . . is a basic due process right to actually see the law. Stripped of that right, individuals are seriously disadvantaged in their ability to protect their rights in a court of law, debate existing policy and petition the government for change.” Such a due process right, the petition explains, has its roots not only in this country’s constitutional history but also in medieval English history. Both sets of histories establish that the federal government can maintain “secret law” only when some special justification — “such as a legitimate need for secrecy to protect national security,” says the petition — is present. Urging the Court to deny certiorari, the government maintains that Gilmore’s due process rights are not violated by the failure to provide him with a copy of the directive because Gilmore had actual notice of the identification requirement. Indeed, the government notes in its filings, Gilmore was aware of the requirement even before he went to the airports at issue, “as the very purpose of his trip was to travel to Washington, D.C. to protest the requirement.” In any event, however, the “relevant law” — which, the government maintains, is the various laws intended to protect aircraft and airline passengers — is published. The identification requirement, by contrast, is merely “a technique used to detect possible violations of the law” for which citizens such as Gilmore have no due process right to advance notice. If certiorari is granted, the case is likely to be heard in the Court’s March 2007 sitting, which would give Gilmore plenty of time to make his way to Washington for argument via train, bus, or automobile. — Amy Howe Disclosure: Tom Goldstein is counsel of record for the petitioner. Neither Goldstein nor other lawyers at Akin Gump contributed to this article.
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: • 05-1076, Padot v. Padot (Dist. Ct. of App. of Fla., 2nd Dist.) Whether the Uniformed Services Former Spouses’ Protection Act authorizes the division of retirement pay but not the portion of retirement pay waived in favor of disability benefits. • 06-130, Varner v. Thomas (CA3) Whether, where counsel’s action at trial is objectively reasonable, the conviction may nonetheless be reversed on the ground that counsel’s subjective thought process is found deficient. • 06-241, Rahmani v. United States (CA9) [Note: Howe & Russell filed as amicus supporting petitioner.] Whether the government may prosecute an individual for donating money to or soliciting donations for an organization designated as a foreign terrorist organization while prohibiting the defendant from demonstrating that the organization was improperly designated a foreign terrorist organization under the governing statute and that said donation or solicitation was therefore protected by the First Amendment. • 06-260, Goodin v. U.S. Postal Inspection Service (CA8) [Note: Both Akin Gump and Howe & Russell represent the petitioner.] Whether the Contract Disputes Act of 1978 impliedly repeals the independent grant of jurisdiction in statutes providing that governmental entities may sue or be sued in federal district court. • 06-274, South Carolina Board of Dentistry v. Federal Trade Commission (CA4) Whether an order denying “state action” antitrust immunity asserted by a state agency under Parker v. Brown is immediately appealable under the collateral-order doctrine. • 06-341, BCI Coca-Cola v. Equal Employment Opportunity Commission (CA10) Under what circumstances an employer is liable under federal anti-discrimination laws based on a subordinate’s discriminatory animus, where the person who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the affected employee. • 06-344, Mineral County, Mont. v. Ecology Center (CA9) What the standard of review under the Administrative Procedure Act is in evaluating whether the Forest Service has complied with the National Environmental Policy Act of 1969 and the National Forest Management Act of 1976. • 06-413, Uttecht v. Brown (CA9) Whether the 9th Circuit erred by not deferring to the trial judge’s observations and by not applying the statutory presumption of correctness in ruling that a state court decision to remove a juror was contrary to clearly established federal law. • 06-427, Tennessee Secondary School Athletic Association v. Brentwood (CA6) Whether the 6th Circuit correctly held that a secondary school athletic association violated the First Amendment and due process rights of a high school when it imposed contractual penalties for violations of the recruiting rule that said high school agreed to follow. • 06-457, Rowe v. New Hampshire Motor Transport Association (CA1) Whether the Federal Aviation Administration Authorization Act of 1994 pre-empts states from exercising their historic public health police powers to regulate carriers that deliver contraband such as tobacco and other dangerous substances to children. • 06-475, Blue Cross Blue Shield of Florida v. Abbott Labs (CA11) Whether, considering the federal rules of procedure, a district court may decline to give any weight to reliance on the normal time for delivery of mail and instead place the risk of late delivery by the postal service entirely on the mailer. • 06-484, Tellabs v. Makor Issues & Rights (CA7) Whether, and to what extent, a court must consider or weigh competing inferences in determining whether a complaint asserting a claim of securities fraud has alleged facts sufficient to establish a “strong inference” that the defendant acted with scienter, as required under the Private Securities Litigation Reform Act of 1995. • 06-531, Struhs v. Wytner (CA11) Whether the 11th Circuit is correct in holding that a preliminary injunction is relief on the merits, or whether a preliminary injunction is not a ruling on the merits and thus cannot be the basis for prevailing party status. • 06-549, Environmental Protection Agency v. Defenders of Wildlife (CA9) Whether the Endangered Species Act of 1973, which requires each federal agency to ensure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency’s discretion by other acts of Congress. • 06-593, Long Island Care at Home v. Coke (CA2) Whether the 2nd Circuit erred in refusing to give Chevron deference to a 30-year-old Department of Labor regulation that has twice been upheld by the 10th Circuit on the ground that, even though it was promulgated under express grants of legislative authority and after full notice-and-comment rulemaking, the regulation was contained in a subpart headed “Interpretations.” • 06-606, Altadis v. Sea Star Line (CA11) Whether the Carmack Amendment applies to the inland leg of a multimodal shipment to a place in the United States from a place in a territory of the United States, even if the inland carrier does not issue a separate bill of lading for the inland leg.

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